Indian Journal of Law and Justice, Vol. 13, No. 01

Permanent URI for this collectionhttps://ir.nbu.ac.in/handle/123456789/4595

EDITORIAL NOTE

The last two years have been immensely difficult, worldwide, due to the Covid-19 pandemic. We are glad that the world is recovering gradually. However, the pandemic has ensued global crisis exacerbating deep-seating social inequalities within our societies. Women, low-income households, children and young people, as well as low-skilled, part-time temporary and self-employed workers, all have been disproportionately affected.

Keeping these issues in mind, the Editorial Board presents the 13th Issue of the Indian Journal of Law and Justice. Once again, with the incessant efforts and ‘never-say-die’ spirit of the editorial team, the India Journal of Law and Justice sets its foot in its journey for the second decade.

Keeping in tandem with the objective of the journal of being a multidisciplinary journal, the key focus of this edition ranges from human rights issues of women, women refugees, human trafficking, trans-rights, the criminal justice system to public health management, artificial intelligence and big data in health sector and human gene editing. This volume contains a Notes and Comments section with short articles highlighting concerns like terrorism and international criminal justice system, right to fair trial of victims and feminist perspective of the Kamtapur Movement. The book review segment contains review of the edited and annotated version of the celebrated Annihilation of Caste which has been edited and annotated by S. Anand and the foreword of which has been penned down by Arundhati Roy.

I thank all contributors for their submissions to this edition and their cooperation with the editorial team during the production phase. I would also like to express my gratitude to the entire Editorial Team whose commitment and perseverance made this publication possible.

Suggestions and opinions for the improvement of the journal is solicited.

With Best Wishes

Prof. (Dr.) Rathin Bandhopadhyay
Chief Editor

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    Understanding the Kamptapur Movement from A Feminist Perspective : A Study of Role and Participation of Women in the Movement for Autonomy
    (University of North Bengal, 2022-03) Arshed (Goswami), Niviya
    The paper is an attempt to understand the Kamptapur Movement of North Bengal the region from the theoretical lenses of the feminist school. It is an effort to trace how the movement which initially started with the demand for recognition and autonomy eventually has ignored and disregarded the role and importance of women leading to a gender-biased construction of identity crisis. Baking primarily on a feminist critic the paper makes a serious effort to find the research gap that was the major factors for understanding the question of identity politics of individuals and groups. Through empirical data and an extensive filed based survey and interviews the paper will try to explain that despite evidence and reports of women participation why there in almost all existing kinds of the literature we find a very narrowly narrated contribution of the women in the movement.
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    Right to Fair Trial for the Victim – Changing Paradigm in 21st Century
    (University of North Bengal, 2022-03) Zahan, Momina; Singh, Manju
    The concept of fair trial is the foundation stone of any justice delivery mechanism for the prevention of miscarriage of justice. While the general concept of ‘fair trial’ should mean a ‘trial’ in which there is no biasness or prejudice against any party to trial or the cause, yet it is considered, to be the trial wherein there is no biasness against the defendant/accused only. But a trial can be fair only when the whole of the prosecution procedures has been fair-minded and reasonable, and it is extended to all the participants of the criminal justice system along with the accused. Thus, this paper attempts to investigate the scope of the concept of fair trial and observe whether it can be extended to the other players of the criminal justice system, especially the victims of crime.
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    Terrorism and the International Criminal Justice System
    (University of North Bengal, 2022-03) Chakraborty, Samraggi
    Terrorism has always haunted mankind. In recent years, terrorism has become a global issue. States are frequently becoming victims of terrorist activities. The consequence of terrorism is that it violates human rights. The attack on World Trade Centre tower, New York in September 11, 2001 has made the world consider terrorism as a matter of serious concern. At present, international terrorism is a matter of grave concern. There have been adoptions of many Conventions to deal with terrorism. However, there is a hurdle to it. This hurdle is because there is no uniform definition of terrorism.
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    Federalism and the Concept of Consociationalism : An Experience in Indian Context
    (University of North Bengal, 2022-03) Begum, Tabesum
    Today a federal form of governance with its nature and scope is presenting itself as an increasing important and relevant issue with the changing nature of polity. The very idea of consociationalism and the concept of Federalism are very useful tools for understanding any political systems in its core. Actually federalism and consociationalism are both based on compound majoritarianism rather than simple majoritarianism, and both represent modern attempts to accommodate democratic complexity and pluralism, although the two systems are not quite symmetrical, and territorial organization is not the only feature that differentiates each of the term in real sense. Again, in a highly plural society, the decision-making process becomes so competitive that new types of interest aggregations take place, thereby making the system looks like more complicated. My paper exactly emphasizes these fundamental issues within a broad framework of Consociationalism and Federalism in India.
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    Public Health Management : The Way Forward through Patent Pools
    (University of North Bengal, 2022-03) Krishnan, Awasthy G.
    Patent pools covers agreements whereby two or more parties agree to pool their respective technologies and license them as a package. It facilitates public health management of IP through a partnership between an entity with a public health mandate on one hand and private pharmaceutical companies on the other hand. This model of access-oriented and nonexclusive voluntary licensing mechanisms with a clear public health mandate can contribute to achieving this goal of Universal Health coverage and can overcome a number of access and innovation challenges in the biopharmaceutical field. This can be substantiated by analyzing the successful Medicines Patent pool. The benefits of collaborative research and an efficient patent pool could also be witnessed when COVID-19 pandemic was declared as a Public Health Emergency of International Concern by the World Health Organization (WHO) on January 30, 2020, where they launched the COVID-19 Technology Access Pool (CTAP) with a Solidarity Call to Action for sharing intellectual property on treatments and vaccines.
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    Philosophical Correlation between Rational Design Theory and Model Bilateral Investment Treaties
    (University of North Bengal, 2022-03) Mukherjee, Souvik; Chakrabarti, N.K.
    Model Bilateral Investment Treaties have grown parallel to the evolution of Bilateral Investment Treaties; however, little importance have been given to the theoretical premise of the treaty design and raison d’ être for framing Model Bilateral Investment Treaties. Even the 2001 project on Rational Designing of International Institution, which discussed theoretical premise of participation of States while concluding international agreements, limited the study to the multilateral agreements, and left out bilateral agreements. However, it could be seen that the modern BIT regime, since its inception, was mounted upon the idea of need. On one hand States needed to import capital for economic development, on the other hand the States needed protection for the investments. Thereby making the regime based only on certain rationales. The development and transitions of Bilateral Investment Treaties and Model Bilateral Investment Treaties evidences the philosophy of Rational Design Theory. The Treaty practice may on occasion do not reflect rational measures, however, the form the philosophical standpoint it does.
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    Health Care Concerns of the Homeless in India : A Human Rights Approach in COVID-19
    (University of North Bengal, 2022-03) K, Amrutha; S, Giri Sankar S
    Homelessness is the absence or denial of one’s housing rights. Homelessness is the violation of human rights that occurs in every country, endangering the health and lives of the poorest people. Thousands of human lives are at stake every year just because of lack of shelter. Due to lack of reliable statistics on the homeless population and lack of accountability towards them, the homeless tend to be overlooked in government programmes. Homeless people aren't limited to a specific population. In the vicious cycle of homelessness, children, women, the elderly, particularly the disabled and people with special needs are all victims. Comparing to other marginalized groups like women, children, indigenous and elder people, homeless face many human rights violations as well as health and social inequalities. Massive health inequalities are found across the world among homeless people; hence, the right to health is one of the most violated human rights for homeless. The misery of homeless people has been exacerbated by the Covid-19 pandemic3 which has spotlighted the significance of adequate housing in a way that has never been seen before. This paper considers that homeless people are one of the most vulnerable members of the society, and faces many health care inequalities and human rights abuses during Covid-19. This study focuses on the human rights obligations of India to provide the right to housing during the COVID-19 pandemic. For the purpose of the study various international human rights laws as well as Indian constitutional and legal documents has been analysed.
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    Protection against Self-Incrimination – Principles and Practice - A Comparative Analysis
    (University of North Bengal, 2022-03) Sundaram, Shanmuga; Rajavenkatesan, P.R.L.
    Application of the rule against self-incrimination is one of the important rights recognized under Article 20(3) in Part III of the Constitution of India. The Supreme Court of India applied this principle in its full force and effect in M.P. Sharma v Satish Chandra.3 However, in some of the later judgments, application of this protection was diluted. The rationale of the judgments for not recognizing this constitutional protection in the later judgments is not convincing. Such a rationale is also contradictory to the principles enunciated by the Supreme Court in other judgments dealing with the rights and liberties of an individual. In United Kingdom, despite the strong demand for dilution or abandoning this protection, the courts have consistently upheld this protection. In United States of America also, this protection is recognized as one of the fine principle developed by the civilized society. Compelling an individual to be a witness against himself demean the dignity of the individual and such compulsion and reliance on it by the courts would have the effect of dispensing with the proof otherwise required for determining the guilt of an accused. In some of the later cases, the Supreme Court of India has recognized the importance of this protection and applied it. Tracing the history of this protection and its application in United Kingdom and United States America would help understanding the underlying principles for this protection. Comparison of the Indian experience with other jurisdiction would provide an opportunity for introspection and consider remedial measures.
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    Artificial Intelligence, Big Data and Health Privacy : Need for Democratization and Regulation in Health Data Processing System
    (University of North Bengal, 2022-03) Sehanobis, Tridipa
    The paper seeks to depict the present status of Artificial Intelligence (“AI”) in the healthcare system of India and its issues relating to data privacy. AI is being a major contributor to health and medical domain not only increase its efficiency but also to gain economic firmness in these sectors in India. Owing to this, comes deep concern on its regulation and law limits while using the personal data of the patients for any other purposes than treatment. The use of AI which entails constant exchange of information and data between the patient and the AI service providers, raises serious concern for data privacy, as they are using the sensitive personal data of the individuals for other purposes like prospective trainings, creating algorithms, advertisement, etc. Hence, with big datasets there is associated serious threat and challenges to the privacy of the individuals, which is required to be addressed. This is possible with the foremost step of the democratization of health data and healthcare where individual will have better access to his/her health information and therefore manage their own health. This can further be implemented through the usage of AI-based technologies, like wearable bands, glucometers, etc. following a due process. Again, the operators of these devices should be strictly regulated through certain regulation and legislation such as Data Protection Bill, which safeguards the privacy of the data owners. The legislature should ensure the passage of the laws following due process, discussion and participation of the people to ensure inclusivity and safeguard the interest of each individual. The paper tries to suggest measures to make use of AI in healthcare ecosystem in a regulated manner so that its use is more of importance than of controversy.